Citation Nr: 1009194
Decision Date: 03/11/10 Archive Date: 03/17/10
DOCKET NO. 08-09 744 ) DATE
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On appeal from the
Department of Veterans Affairs
Medical and Regional Office Center in Fargo, North Dakota
THE ISSUES
1. Whether new and material evidence has been presented to
reopen a previously denied claim of entitlement to service
connection for bilateral hearing loss.
2. Entitlement to service connection for bilateral hearing
loss.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Patricia A. Talpins, Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals
("BVA" or "Board") on appeal from a March 2007 rating
decision of the Department of Veterans Affairs ("VA")
Medical and Regional Office Center ("RO") in Fargo, North
Dakota in which the RO found that new and material evidence
had not been received to reopen the appellant's previously
denied claim of entitlement to service connection for
bilateral hearing loss. In that same rating decision, the RO
denied the appellant's claim of entitlement to service
connection for tinnitus. The appellant, who had active
service from October 1966 to August 1970 and from September
1973 to July 1976, appealed the RO's denial to reopen his
bilateral hearing loss claim to the BVA. Thereafter, the RO
referred that issue to the Board for appellate review.
For reasons discussed in more detail below, the Board finds
that new and material evidence has in fact been received to
reopen the appellant's previously denied claim of entitlement
to service connection for bilateral hearing loss. However,
since the RO has not had the opportunity to evaluate the
merits of the appellant's reopened hearing loss claim, it
must be REMANDED to the RO for its consideration. As such,
the merits of this issue will be addressed in the REMAND
portion of the decision below; and is hereby REMANDED to the
RO via the Appeals Management Center ("AMC") in Washington,
DC. VA will notify the appellant if further action is
required on his part.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's new and material bilateral
hearing loss service connection claim has been obtained.
2. Most recently, in an unappealed decision dated in March
2002, the RO reopened a previously denied claim of
entitlement to service connection for bilateral hearing loss
but denied the claim on its merits.
3. The evidence received since the March 2002 rating
decision, by itself, or in conjunction with previously
considered evidence, relates to an unestablished fact
necessary to substantiate the appellant's bilateral hearing
loss claim and raises a reasonable possibility of
substantiating that claim.
CONCLUSIONS OF LAW
1. A March 2002 rating decision that denied entitlement to
service connection for bilateral hearing loss is a final
decision. 38 U.S.C.A. §§ 7103(a), 7104(b) (West 2002); 38
C.F.R. §§ 20.1100, 20.1104 (2009).
2. The evidence received subsequent to the March 2002 rating
decision is new and material; and therefore the claim of
entitlement to service connection for bilateral hearing loss
is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West
2002 and Supp. 2009); 38 C.F.R. §§ 3.102, 3.156, 3.159,
20.1105 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. The Veterans Claims Assistance Act
As a preliminary matter, the Board is required to address the
Veterans Claims Assistance Act of 2000 ("VCAA") that became
law in November 2000. The VCAA provides, among other things,
that VA will make reasonable efforts to notify a claimant of
the relevant evidence necessary to substantiate a claim for
benefits under laws administered by VA. The VCAA also
requires VA to assist a claimant in obtaining that evidence.
38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38
C.F.R. § 3.159 (2009).
In this case, a letter dated in January 2007 specifically
informed the appellant of the substance of the VCAA.
Nevertheless, since this decision represents a complete grant
of the appellant's appeal in regards to the issue of whether
the appellant's bilateral hearing loss claim should be
reopened, the appellant cannot be prejudiced
by any deficiency, if any, in the notice and assistance
requirements of the VCAA. As such, the Board will dispense
with any further discussion of the VCAA and will proceed to
the issue presented on appeal.
B. Reopened claim
Applicable law provides that service connection will be
granted if it is shown that a veteran has a disability
resulting from an injury suffered or disease contracted in
the line of duty, or for aggravation of a pre-existing injury
suffered or disease contracted in the line of duty, in the
active military, naval or air service. See
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection
may also be granted for certain chronic diseases, such as
sensorineural hearing loss, when such disease
is manifested to a compensable degree within one year of
separation from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R.
§§ 3.307, 3.309. In addition, service connection may be
granted for any disease diagnosed after discharge, when all
of the evidence, including that pertinent to service,
establishes that a disease was incurred in service. 38 C.F.R.
§§ 3.303, 3.304.
For purposes of applying VA laws, impaired hearing is
considered a disability when the auditory threshold in any of
the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40
decibels or greater; or when the auditory thresholds for at
least three of the frequencies 500, 1000, 2000, 3000, and
4000 Hertz are 26 decibels or greater; or when speech
recognition scores using the Maryland CNC Test are less than
94 percent. 38 C.F.R. § 3.385.
Generally, to prove service connection, the record must
contain: (1) medical evidence of a current disability, (2)
medical evidence, or in certain circumstances, lay testimony,
of an in-service incurrence or aggravation of an injury or
disease, and (3) medical evidence of a nexus or relationship
between the current disability and the in-service disease or
injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Caluza v.
Brown, 7 Vet. App. 498 (1995). The United States Court of
Appeals for Veterans Claims (the "Court") has held that the
absence of evidence of a hearing loss disability in service
is not fatal to a veteran's claim. Ledford v. Derwinski, 3
Vet. App. 87, 89 (1992). The Court has also held that
evidence of a current hearing loss disability and a medically
sound basis for attributing such disability to service may
serve as a basis for a grant of service connection. Hensley
v. Brown, 5 Vet. App. 155, 159 (1993).
In this appeal, the appellant seeks service connection for
bilateral hearing loss on the basis of his exposure to
acoustic trauma during his first period of service. See
appellant's statements dated in January 2007, March 2007 and
March 2008. In the past, the appellant has requested and
been denied service connection for this audiological disorder
on several different occasions. See rating decisions dated in
June 1971, January 1977 and April 1985. The appellant was
provided notice of the above-referenced rating decisions, as
well as his appellate rights. Id. However, he did not
appeal.
Thereafter, the appellant requested in March 2002 that his
claim of entitlement to service connection for bilateral
hearing loss be reopened. After evaluating the appellant's
request in conjunction with the evidence of record, the RO
reopened the appellant's bilateral hearing loss claim but
denied the claim on its merits. March 2002 rating decision.
While the appellant was provided notice of the March 2002
rating decision with his appellate rights, he did not appeal.
Thus, the March 2002 rating decision represents a final
decision. 38 U.S.C.A. §§ 7103, 7104; 38 C.F.R. §§ 20.1100,
20.1103, 20.1104.
Most recently, the appellant contacted the RO in December
2006 with a request to reopen his previously denied bilateral
hearing loss claim. See December 2006 statement in support of
claim. As a general rule, a claim shall be reopened and
reviewed if new and material evidence is presented or secured
with respect to a claim that is final. 38 U.S.C.A. § 5108; 38
C.F.R. § 3.156. When a veteran seeks to reopen a final
decision, the first inquiry is whether the evidence presented
or secured after the last disallowance is "new and
material." Under 38 C.F.R. § 3.156(a), new evidence means
existing evidence not previously submitted to agency
decisionmakers. Material evidence means evidence that, by
itself or when considered with previous evidence of record,
relates to an unestablished fact necessary to substantiate
the claim. New and material evidence can be neither
cumulative nor redundant of the evidence of record at the
time of the last prior final denial of the claim sought to be
reopened and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a).
When determining whether a claim should be reopened, the
credibility of the newly submitted evidence is presumed.
Justus v. Principi, 3 Vet. App. 510 (1992). In order for the
evidence to be sufficient to reopen a previously denied
claim, the evidence must be both new and material. If the
evidence is new, but not material, the inquiry ends and the
claim cannot be reopened. Smith v. West, 12 Vet. App. 312
(1999). If it is determined that new and material evidence
has been submitted, the claim must be reopened. The Board
may then proceed to the merits of the claim on the basis of
all of the evidence of record.
In this case, the evidence associated with the claims file
since the March 2002 rating decision consists of private
medical records dated from March 2005 to April 2006;
statements from the appellant; and an April 2007 VA
audiological examination report. In terms of evaluating the
above-referenced evidence, the Board observes for the record
that the RO found it to be new but not material after
implicitly comparing it with the other evidence contained in
the claims file. See March 2007 rating decision. A
comparison of the appellant's newly submitted evidence and
the other evidence contained in the claims file essentially
constitutes a merits determination of the appellant's claim
rather than a determination of whether new and material
evidence has been submitted to reopen the claim. Analyzing
only the issue of whether the appellant's bilateral hearing
loss claim should be reopened, and presuming the credibility
of the March 2007 VA medical examination report and the 2005
and 2006 private medical records contained in the claims
file, the Board concludes that new and material evidence has
been submitted to reopen the appellant's previously denied
claim of entitlement to service connection for bilateral
hearing loss.
Accordingly, the Board finds that the appellant's bilateral
hearing loss claim should be reopened. 38 U.S.C.A. § 5108.
However, since the RO has not had the opportunity to
explicitly adjudicate the appellant's bilateral hearing loss
claim in light of all evidence of record, this case must be
remanded for such adjudication. See, e.g., Bernard v. Brown,
4 Vet. App. 384 (1993).
ORDER
New and material evidence has been received to reopen a claim
of entitlement to service connection for bilateral hearing
loss; and to this extent only, the appeal is granted.
REMAND
In view of the above determination that the appellant's claim
of entitlement to service connection for bilateral hearing
loss is reopened, the Board finds that the RO, consistent
with the principles set forth in Bernard v. Brown, supra,
must be provided an opportunity to further develop the record
(if warranted) and to conduct a de novo review of the
reopened claim, based on the evidence in its entirety. As
such, this claim is hereby remanded to the RO for review.
Accordingly, the case is REMANDED for the following actions:
1. The RO should ensure that all
notification and development action
required by the VCAA and implementing
VA regulations is completed in regards
to the appellant's bilateral hearing
loss claim, including the notification
requirements and development procedures
contained in 38 U.S.C.A. §§ 5102, 5103,
5103A and 5107. See also
Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006); Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006).
2. After undertaking any additional
development deemed warranted (see
January 2010 informal hearing
presentation) and considering all of
the evidence of record, the RO should
review on the merits the appellant's
reopened service connection for
bilateral hearing loss claim. If the
benefit sought is not granted, the
appellant and his representative should
be furnished a Supplemental Statement
of the Case and be afforded a
reasonable opportunity to respond
before the record is returned to the
Board for further review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs